RAJA KUMARA VENKATA PERUMAL RAJU BAHADUR VARU, ZAMINDAR OF KARVETINAGAR, MINOR BY THE ESTATE GUARDIAN W A VARADACHASIAR Vs. SUBBARAYA PILLAI

JUDGEMENT

(1.) The question common to all these appeals is whether the Karvetinagar Estate is inalienable by virtue of its tenure or by a custom under which the Zamindar for the time being is prohibited from alienating any portion of the estate, except for purposes for which the manager of a joint Hindu family (not the father) is entitled as such manager to make valid alienations of the joint family property. On this question I might at once say that I agree with the judgment to be pronounced by my learned brother. As it was, however, argued with great strenuousness and persistence by Mr. Govindaraghava Aiyar for the appellant, I deem it appropriate to express my views on this point, in my own words. As regards inalienability by virtue of the tenure, as soon as the military tenure under which the properties were; held was put an end to, about 120 years ago, that is, when the British Government granted the lands to the Zamindav under a quite different tenure With express powers of alienation and after imposing a liability on the lands to be attached and sold in execution of decrees passed against the grantee, the restraint on alienation without the permission of the overlord came to an absolute end. The analogy of the incident of impartiality attaching to game estates is absolutely misleading. Impartibility, according to the Privy Council decision in Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind. Jur. 213 : 6 Ind. Dec. (N.S.) 182 (P.C.), leads logically to the existence of a power of alienability and not to a rule of inalienability.

(2.) Further, the custom of impartibilifcy and of succession by a single owner are incidents attached not so much to the property held by a family as to the law governing that particular family, see Lord Mavnaghten in the Udayarpalayam, case, Kachi Kaliyini Rangappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakka Thola Udayar 24 M. 508 : 2 C.L.J. 231 : 10 C.W.N. 95 : 15 M.L.J. 312 : 2 A.L.J. 845 : 7 Bom. L.R. 907 : 1 M.L.T. 12 : 32 I.A. 261 : 8 Sar. P.C.J. 865 (P.C.). At page 516 in that case, the following passages occur: "On the cession of the Carpatic, the British Government assured the Poligars, of whom the Poligar of Udayar was one, that they would enjoy every just and ascertained civil right, with a free exercise of the religious institutions and domestic usages of their ancestors." One of the domestic usages, namely, succession according to rules of primogeniture, was upheld in that case. In the case of Zamindaries where succession by primogeniture prevails, though that domestic usage might have he gun in the tires when the head of the family was a military ruler and though that position had ceased at the time of the Permanent Settlement, the family law of succession by primogeniture was presumed to continue even afterwards. In short, it is a. question of the family law of succession and after. law was held applicable even in the case of families of certain Mussalman Zamindara. See Mohammad Afzal Khan v. Ghulam Kasim, Khan 30 C. 843 at p 862 : 67 P.R 1903 : 112 P.L.R. 1903 : 8 C.W.N. 81 : 5 Bom. L.R. 486 : 30 I.A. 190 : 8 Sar. P.C.J. 455 (P.C.)], It is not really a question of succession to a particular property. It can never be argued that where portions of an impartibly estate are alienated by a Zamindar,governed by his family law of primogeniture to Hindus governed by the ordinary Hindu Law, succession to the portions so alienated is also governed by the law of primogeniture. If the proprietor of the Karvetinagar Estate was incapable by the custom of his family from alienating or binding by his debts any part thereof beyond his own lifetime, except under circumstances which would entitle the managing member of a joint family to do so, the enactment of Section 4(1) of the Impartible Estates Act was superfluous so far as this estate was concerned. That the law of impartiality depends on the family custom of succession and not on the nature of the estate is also clear from the case in Durgadut Singh v. Rameshwar Singh 4 Ind. Cas. 2 : 36 C. 943 : 13 C.W.N. 1013 : 6 M.L.T. 68 : 11 Bom. L.R. 901 : 6 A.L.J. 847 : 36 I.A. 176 (P.C.) : 10 C.L.J. 283 19 M.L.J. 567, which related to certain properties given to junior members of a Zamindari family for their maintenance. It was held in that case that it was proved that the family custom of primogeniture and impartiality governed the succession to those properties also. (See pages 952 to 954). As remarked by that eminent Judge (West, J.) [see pases 272-73 of Bhau Nanaji Utpat v. Sundrabai 11 B.H.C.R. 249], "In a good many cases, the question of family custom has been mixed up with that of the supposed impartible character of a raj or principality, and this has perhaps led to some little confusion in particular instances, but; a careful examination of the oases will show that the special law of descent has usually been put by the Privy Council, as in the case of Neelkisto Deb Burmono v. Beerchunder Thakoor 12 M.I.A. 253 : 12 W.R. (P.C) 21 : 3 B.L.R.P.C. 13 : 2 Suth. P.C.J. 243 : 2 Sar. P.C.J. 523 : 20 E.R. 436, on the ground of ancient family custom whether the property, was a, raj, or not. There are other eases like that of Girdharee Sing v. Koolahul Sing 2 M.I.A. 344 : 6 W.R.P.C. 1 : 1 Suth. P.C.J. 98 : 1 Sar. P.C.J. 200 : 18 E.R. 330, in which the fact that the estate was a raj was held not to involve the consequence that it was indivisible under a special law of, inheritance applicable to that species of property ; and generally it may be said that it is the family custom of descent, which, for juridical purposes, gives the property the character of a raj, and not anything in the estate itself, which determines the rights of pretenders to it. In a case in 7 Beng. S.D.A.R. 195 it was ruled that on a property which had descended in one family, according to a rule of primogeniture, undivided, passing to another family in which no special rule prevailed, it became particle according to the ordinary law. Thus viewed, all the numerous cases of property regarded as impartible because partaking of the nature of a raj are instances of the effect which the highest Court has given to family customs diverging from and, therefore, in a sense repugnant or antagonistic to the general law. The prevalence in any part of India of the special course of descent in a family, differing from the ordinary course of descent, in that place, of the property bof people of that class or race, stands on the footing of usage or custom of the family. Soorendionath Roy v. Musammat Heeramonee Burmoneah 12 M.J.A. 81 at p. 91 : 10 W.R.P.C 35 : 1 B.L.R.P.C. 26 : 2 Suth. P.C.J. 147 : 2 Sar. P.C.J. 372 : 20.E.R. 271. In Rajkishen Singh v. Ramjny Surma Mozoomdar 1 C. 186 : 19 W.R. 8 : 3 Sar. P.C.J. 174 : 8 M.J 151 : 2 Suth. P.C.J. 741 : 1 Ind. Dec. (N.S.) 119 (P.C.) the following observations occur at page 191: "In the present case the estate was held directly from the Government, there being no intermediate lord. And it appears to their Lordships that, upon this settlement, any incidents of the old tenure, as a military jagir, requiring the render of services, if any such ever existed, were, as conditions of tenure, impliedly at an end; and that the Zimindari, so far as relates to tenure, was thenceforth held under the Government as an ordinary Zimindari free from any such conditions, The settlement would not, however, of itself, have operated to destroy a family sage regulating the manner of descent.... It would not of itself affect an existing family custom." At page 195, their Lordships say that even the custom of impartibility could, without any violation of law, be put an end to by the conduct of the members of the family after the Permanent Settlement. They say: "Their Lordships cannot find any principle or authority for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may not be discontinued, so as to let in the ordinary law of succession. Such family usages are in their nature different from a territorial custom, which is the lex loci binding all persons within the local limits in which it prevails." These passages show that even as regards the family usage of succession by primogeniture, the family could revert to the ordinary law after the Permanent Settlement. As regards the question of inalienability without the Sovereign s sanction in case of military tenures, the reason for the restricted ownership ceasing as soon as the military service is dispensed with, the ordinary law governing impartible estates, involving the right of the holder of that estate to alienate at his pleasure (which follows from there being-no co-parcenary rights vested in the other members of the family C., becomes at once applicable. In the Pittapuram case, Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 22 M. 383 at p. 394 : 1 Bom. L.R. 277 : 3 C.W.N. 415 : 26 I.A. 83 : 7 Sar P.C.J. 481 : 9 M.L.J. Sap. 1 : 8 Ind. Dec. (N.S.) 276 (P.C.), Mr. Mayne tried his best to argue that in the Madras Presidency, there was a special custom governing the impartible estates which were once held by military rulers, which custom attached the incident of inalienability to those estates (except for purposes for which the Mitakshara family manager is entitled to alienate). Their Lordships, however, without even calling, upon the respondent s Counsel, went through all the cases in Madras from the earliest case in Raja Row Vancati Niladry Row v. Vutchavoy Vencatapautly Row 3 Knapp 23 : 12 E.R. 554 and decided against the custom. It was very soon after this decision that the first temporary Act that preceded the Madras Impartible Estates Act was enacted. The evidence in this case, in my opinion, does not establish any custom of inalienability but indicates, on the other band, that the ordinary law which Vests the power of alienation in the Zamindar for the time being was followed by each successive Zamindar, though the son or the brother of a Zamindar sometimes claimed that the ordinary Mitakshara Law applied to the estate. He never suggested that any custom which was against the ordinary law as understood by him applied to the Zamindars. Their Lordships of the Privy Council say at page 386 that where a supposed custom has followed the ordinary law as laid down by the Courts, though it was wrongly assumed to be the ordinary law, that supposed custom which did not modify the understood general law and which had, therefore, not independently the force of law, cannot be recognised by Courts as a custom having the force of law, even after it is established that the supposed ordinary law which it was alleged to have followed was not the ordinary law. I, therefore, agree with the lower Court and with my learned brother that there was no proof of any family usage having been consciously followed which was considered to be a special custom at variance with the ordinary Hindu Law.

(3.) As regards the argument based on Exhibit VII series in which the word Tanaka is used, Ayling, J., says in Dakkata Thotapalli v. Sasanapuri Dali Sethi 22 Ind. Cas. 524 : 1 L.W. 96 at p. 97 : (1914) M.W.N. 270 that "Exhibit A was intended by the parties to create a simple mortgage, I find no doubt whatever. The word Tanaka which is twice used in the operative portion of the document is to my mind conclusive. The learned District Judge says the word Tanaka is always used to denote a mortgage." In Brown s Teluga Dictionary the only meanings given to the word Tanaka are (1) a mortgage, (2) an assignment of land revenue, the latter meaning being obviously inapplicable in the present case. "In Patte Muhamad v. Sheikh Davood 30 Ind. Cas. 569 : 18 M.L.T. 209 : 29 M.L.J. 525 : (1915) M.W.N. 852 : 39 M. 1010 Spencer and Kumaraswami Sastri, JJ., interpret the word Tanaka occurring in the document in that ease as mortgage. The interpretation sought to be put upon that word by Mr. Govindaraghava Aiyar when it occurs in Exhibit VII series, namely, that it meant only an assignment of revenue and not a mortgage, cannot, therefore, be sustained. For from these documents supportingthe learned Vakil s argument that the Zamindar was disinclined to execute deeds of alienation intended to last beyond his lifetime, they support the conclusion that he treated the lands in his estate as his absolute property to be alienated according to his pleasure.